The government’s National Security Bill, which is nearing the end of its progress through parliament, ‘could potentially criminalise one of the core functions of journalism’, Lord Black of Brentwood said in the House of Lords last month. Black, who is deputy chairman of the Telegraph Media Group, feared that the bill would have a chilling effect on reporting information that whistleblowers might disclose in the public interest. He urged ministers to tighten the bill’s scope.
If passed, the legislation will replace the Official Secrets Acts of 1911, 1920 and 1939. It is targeted at hostile activity rather than hostile states. In 2020, the Law Commission recommended a public interest defence for intelligence officers, public servants and journalists alike.
Home Office ministers said a public interest defence would create loopholes that could be used for espionage. But Lord Sharpe of Epsom (pictured below) told peers on Wednesday that publishing an article that criticised the government and might incidentally be capable of helping a foreign intelligence service ‘would not fall within the scope of this offence’.
And Sharpe responded to earlier criticism of the bill by proposing some significant amendments.
Clause 1, as previously drafted, would have made it an offence for a person to obtain or disclose protected information if ‘the person’s conduct is for a purpose that they know, or ought reasonably to know, is prejudicial to the safety or interests of the United Kingdom’. Peers said this could criminalise a journalist who received a press release from a local authority in France.
Sharpe’s amendment inserted a phrase so this now reads ‘…a purpose that they know, or having regard to other matters known to them ought reasonably to know, is prejudicial…’
In the government’s view, ‘this puts it beyond doubt that individuals would not be caught if they acted unwittingly or where they did not have information from which it could be concluded that they should have known’.
Does it? The new test would be partly subjective and partly objective. Prosecutors would have to consider what the person knew in order to decide what the person should have known. But how would investigators know what the defendant knew in the first place?
All they could do would be to bring charges and wait to see if defendants could prove they did not have the crucial information at the time. Demonstrating that you did not know something a long time ago would be a daunting challenge for anyone.
Another amendment relates to clause 3(2) of the bill, which is headed ‘assisting a foreign intelligence service’. The clause originally said: ‘A person commits an offence if the person engages in conduct that it is reasonably possible may materially assist a foreign intelligence service in carrying out UK-related activities and knows, or ought reasonably to know, that it is reasonably possible their conduct may materially assist a foreign intelligence service in carrying out UK-related activities.’
The two mentions of ‘reasonably possible may’ are now replaced by ‘is likely to’. According to the Home Office, this ‘should provide reassurance that the offence is appropriately drafted so as not to capture legitimate activity, including from journalists’.
Again, I am far from reassured. It would hardly be very difficult to prove that a journalist ought reasonably to know that publishing information is likely to assist a foreign intelligence service. Pretty well any information is likely to assist a foreign intelligence service in some way.
One of the ways in which the bill aims to tackle spying is by requiring foreign agents to register their arrival with the UK authorities. Another is to prevent them from paying sources for information. It is acknowledged by the government that journalists can be acting wholly legitimately when receiving funding from a foreign power. On this point, though, the Home Office thinks the bill is fine as it is. ‘There needs to be a clear link between the harmful activity and any assistance or funding from a foreign power for the condition to the met,’ it said.
Government amendments to the bill were accepted by peers on Wednesday and other amendments failed – apart from one by Lord Carlile of Berriew KC that will require UK political parties to identify and manage the risks of donations from foreign powers.
If passed, the bill will apply throughout the UK. Before a prosecution for the most serious offences can go ahead in England and Wales, the consent of the attorney general will be required. Sharpe pointed out that journalists could just as easily have been prosecuted for espionage under existing laws – but reporters have never been charged.
Is the Telegraph at risk of prosecution for publishing Matt Hancock’s leaked WhatsApp messages disclosing the former health secretary’s clashes with other ministers over Covid? That is not what parliament intends. But it may be what parliament would permit.
joshua@rozenberg.net
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